41st Parliament, First Session
The Standing Committee on Procedure and House Affairs has
the honour to present its
Committee, which is responsible for all matters relating to the Standing Orders,
procedure and practice of the House and its committees, pursuant to Standing
Order 108(3)(a)(iii), has undertaken a study in relation to
parliamentary privilege and access to information requests, and is pleased to
report as follows:
privilege and access to government information are two fundamental tenets of
the Canadian system of government ensuring that our democracy is, and remains, strong
It is well
established, in our Westminster parliamentary system, that the House of Commons
and its Members enjoy certain rights, immunities and privileges to assure their
independence in the performance of their constitutional functions. Parliamentary
privilege, and the rights and immunities it confers, result from the centuries
old struggle of the U.K. House of Commons in the assertion of its independence and
the establishment of its distinct role within Parliament.
Enacted in 1982,
the Access to Information Act embodies the principle that information held
by the government should be made available to the public. It is a key instrument
that renders meaningful certain rights and freedoms guaranteed by the Canadian
Charter of Rights and Freedoms, such as freedom of expression and the
democratic rights. Access to government information is also an effective tool
to ensure that politicians and public servants remain accountable to the public.
privilege may at times seem at odds with contemporary values and principles. However,
your Committee believes that the rights and immunities afforded by
parliamentary privilege continue to serve Members in the performance of their
constitutional functions. At the same time, your Committee believes that
parliamentary privilege can be exercised in a manner that will ensure that it
does not needlessly impair other fundamental principles of our democratic
system of government, such as freedom of access to information held by the
government, even when that information relates to parliamentary proceedings.
In June 2012,
the Office of the Auditor General received an access to information request
pursuant to the Access to Information Act, which sought “[a]ll
e-mails respecting the appearance of the Auditor General before Parliamentary Committees
between 17 Jan 2012 and 17 Apr 2012.” On June 20 and 21, 2012, the clerks
of five standing committees received third party notice pursuant to section 27
of the Access to Information Act in relation to records sought in the
access to information request. On June 21, 2012, the House of Commons adjourned
until September 17, 2012. Correspondence between the Auditor General and the Office
of the Law Clerk and Parliamentary Counsel followed; the latter objecting to
the disclosure as the materials sought were considered to form part of parliamentary
proceedings and therefore protected by parliamentary privilege. On August 21,
2012, the House of Commons was informed of the Auditor General’s decision to
disclose the documents, notwithstanding the assertion of parliamentary
privilege since parliamentary privilege was not among the enumerated exceptions
to disclosure listed under the Act. On September 7, 2012, the Office of
the Law Clerk and Parliamentary Counsel filed a notice of application for
judicial review before the Federal Court on behalf of the House of Commons in
order to prevent the disclosure of the documents, until the constitutional
question of the application of parliamentary privilege in the context of access
to information requests was resolved.
On September 17,
2012, the first sitting following the 2012 summer recess, the House of Commons
resolved to waive its privilege in relation to the access to information
request. It unanimously resolved:
having considered the nature of a request made of the Auditor General under the Access to Information Act, the House of Commons waives its privileges
relating to all emails pertaining to the Auditor General appearing before a
parliamentary committee from January 17 to April 17, 2012; and that the Speaker
be authorized to communicate to the Auditor General this resolution.
following the adoption of this resolution, the Speaker of the House of Commons
made a special statement explaining that he and House officials had acted in
accordance with past precedents in similar matters. He underlined that the role
of the Speaker was to act as the guardian of the rights and privileges of the
House and its Members. The Speaker also suggested that “a prompt and thorough
review of the question by the Standing Committee on Procedure and House
Affairs” be undertaken (Debates, pp. 10004–10006). Accordingly, the
Committee decided to undertake a study on the matter.
October 16, 2012, the Deputy Clerk of the House of Commons, Mr. Marc Bosc, and
the Deputy Law Clerk and Parliamentary Counsel, Mr. Richard Denis, appeared
before the Committee. They provided the Committee with the relevant facts concerning
this matter, and offered an overview of the rules governing access to
information and its relation with parliamentary privilege. On November 22,
2012, the Information Commissioner of Canada, Ms. Suzanne Legault, and Mr.
Michel W. Drapeau, Professor at the Faculty of Law of the University of Ottawa,
appeared before the Committee. Ms. Legault also provided the Committee with
written submissions. Ms. Legault and Mr. Drapeau discussed the access to
information regime in place in Canada. On December 6, 2012, the Clerk of the
House of Commons, Ms. Audrey O’Brien, and, again, the Deputy Law Clerk and
Parliamentary Counsel, Mr. Denis, appeared before the Committee.
evidence presented to the Committee offered two different approaches with
respect to the relationship between parliamentary privilege and access to
information. Ms. Legault and Mr. Drapeau asserted that there is no legal basis
to refuse the disclosure of parliamentary privileged records, as parliamentary
privilege is not a listed exemption or exception under the Access to
Information Act. By contrast, the Clerk, the Deputy Clerk, and the Deputy
Law Clerk and Parliamentary Counsel of the House of Commons stated, in reference
to the constitutional nature of parliamentary privilege, that the Act must be
applied and interpreted in a manner consistent with the Constitution, and
therefore must not infringe upon the House and its Members’ privileges.
is grateful for the assistance provided by the witnesses.
Treatise on the Law, Privileges, Proceedings and Usage of Parliament (“Parliamentary
Practice”) defines parliamentary privilege as “the sum of the peculiar
rights enjoyed by each House collectively … and by Members of each House
individually, without which they could not discharge their functions, and which
exceed those possessed by other bodies or individuals” (24th ed. (2011), p.
In Canada, parliamentary
privilege is rooted in the provisions of the Constitution Act, 1867, the
preamble and section 18. Under the latter section, both Houses of Parliament
have claimed the full extent of parliamentary privileges enjoyed by the UK
House of Commons at the time of Confederation through section 4 of the Parliament
of Canada Act. Since parliamentary privilege is rooted in the Constitution
Act, 1867, it has constitutional status equal to the other parts of
the Canadian Constitution, including the Canadian Charter of Rights and
parliamentary privileges form part of the Constitution, laws must be interpreted
and applied in a manner consistent with them, and where there is a conflict
between privileges and statutory provisions, the statutory provisions are “of
no force and effect” to the extent of the inconsistency. This constitutional
principle is a fundamental postulate and organizing principle of the Canadian
constitutional structure, and is clearly set out in subsection 52(1) of the Constitution
Act, 1982 that provides: “[t]he Constitution of Canada is the supreme law
of Canada, and any law that is inconsistent with the provisions of the
Constitution is, to the extent of the inconsistency, of no force or effect.”
have recognized the special constitutional status attached to parliamentary
privilege and the limitations it imposes over their own jurisdiction, and that
of the executive. Courts have accepted that they cannot enquire into the merits
of the exercise of a privilege once it has been established. Parliament is the
sole judge of the appropriateness of the exercise of any of its privileges.
As part of its
privileges, the House has the exclusive right to regulate its own internal
affairs, which includes the control over its own proceedings as they relate to
the House’s constitutional functions. As noted by Erskine May’s
Parliamentary Practice, the House has “the exclusive cognizance of [its]
own proceedings” and retains “the right to be sole judge of the lawfulness of
[its] own proceedings, and to settle – or depart from – [its] own code of
procedure” (24th ed. (2011), p. 227). This privilege has old roots in our
parliamentary system. In 1689, the U.K. Bill of Rights recognized Parliament’s
exclusive jurisdiction over its proceedings by stating that “proceedings in
Parliament ought not to be impeached or questioned in any court or place out of
Parliament” (Article 9). The control of the House over its proceedings is at
the core of the fundamental constitutional separation of powers, guaranteeing
the legislative branch autonomy from executive and judicial powers.
right of the House to control its proceedings is a right which extends to its
committees, and constitutes the authority for the oft-repeated proposition that
committees are the “masters of their own proceedings” or “masters of their own
procedures,” subject, of course to any limitation imposed by the House.
Parliamentary committees owe their existence to the House and are empowered
only to the extent that the House has authorized, be it by standing or special
orders. They are answerable of their proceedings to the House, and only to the
is no single and definitive definition of “parliamentary proceedings” in
Canadian lex parliamentaria.
Joseph Maingot’s Parliamentary Privilege in Canada explains that: “[a]s a technical
parliamentary term, ‘proceedings’ are the events and the steps leading up to
some formal action, including a decision, taken by the House in its collective
capacity. All of these steps and events, the whole process by which the House
reaches a decision (the principal part of which is called debate), are
‘proceedings”. Maingot also refers to all events necessarily incidental to the
enactment of laws, and other procedure as petitions, questions, notices of
motions, etc., as part of the “proceedings in Parliament” (2nd ed., (1997). p.
House of Commons
Procedure and Practice (2nd ed., (2009), pp. 91-92) and Maingot (2nd ed.,
(1997). p. 80) also refer to the definition of Erskine May’s Parliamentary
The primary meaning of proceedings, as a technical
parliamentary term [...], is some formal action, usually a decision, taken by
the House in its collective capacity. While business which involves actions and
decisions of the House are clearly proceedings, debate is an intrinsic part of
that process which is recognised by its inclusion in the formulation of article
IX [of the Bill of Rights, 1689]. An individual Member takes part in a
proceeding usually by speech, but also by various recognized forms of formal
action, such as voting, giving notice of motion, or presenting a petition or
report from a committee, most of such action being time-saving substitute for
Officers of the House take part in its proceedings
principally by carrying out its orders, general or particular. Members of the
public also may take part in the proceedings of a House, for example by giving
evidence before it or one of its committees, or by securing the presentation of
a petition (24th ed. (2011), pp. 235-236).
sum, “parliamentary proceedings” include all actions accomplished in the course
of the transaction of business by the House and its committees, and any actions
accomplished for that purpose or incidental to it. Speeches (debates), notices
of motions, giving of evidence orally and through written submission are
examples of actions that are part of the proceedings. Documents prepared in
anticipation of the transaction of business by the House of a committee such as
briefing or speaking notes, and correspondence from or to House or committee
officials also form part of parliamentary proceedings (see Erskine May’s Parliamentary
Practice, 24th ed. (2011), pp. 237-238).
Process for Access to Information Request
House of Commons is not subject to the provisions of the Access to
Information Act. It nonetheless does, from time to time, receive third
party notices under section 27 of the Act when the materials sought from a
government institution contain information relating to the business of the
House. In those cases, the records sought are in the possession of a government
institution subject to the Act, but may nonetheless form part of Parliament’s
proceedings. This was the case with respect to the materials that were the
subject of the third party notice received from the Office of the Auditor
General earlier this year. The established practice of the House has been to
decline to consent to the disclosure of records that formed part of the
proceedings of the House or its committees, as such records are protected by
parliamentary privilege, and to notify the government institution that any
requests for records relating to parliamentary proceedings were to be made
directly to the House of Commons. Except in the most recent case involving the
Office of the Auditor General, government institutions have always accepted the
House’s constitutionally based position. Ms. Legault and Mr. Drapeau, during
their appearance before the Committee, took the same position as the Auditor
General; short of a legislated exemption or exception permitting refusal of
disclosure, parliamentary privileged records, they argued, ought to be
disclosed despite objections by the House.
Committee is concerned that this position ignores the constitutional nature of
parliamentary privilege and the constitutionalism principle entrenched in
subsection 52(1) of the Constitution Act, 1982. Just as the Access to
Information Act must be interpreted and applied in a manner consistent with
the Constitution, including the Canadian Charter of Rights and Freedoms,
the Act must also be interpreted and applied in a manner consistent with
parliamentary privilege. The position advocated by the Auditor General, Ms.
Legault and Mr. Drapeau would seriously impair the independence of the House and
its committees by potentially jeopardizing their ability to accomplish their constitutional
functions. It could, for example, render meaningless the decision of a
committee to hold its meetings in camera, as an access to information
request could render public any record under the control of a government
institution that relates to such a meeting.
forming parts of the parliamentary proceedings of the House and its committees ought
to be considered as exempted under the Act; they ought to be disclosed only with
the permission of the House or its committees and in accordance with guidelines
adopted by the House as those contemplated by this Report. In order to assert
its constitutional privileges, the House and its committees must be notified
when records sought may form part of their parliamentary proceedings. While the
third party provisions of the Act do not expressly contemplate notice to the
House or its committees when privileged records are sought, providing such a
notice is in line with the spirit of the Act and it allows the House to
exercise its constitutional privilege to control its proceedings.
Legault and Mr. Drapeau expressed concerns as to the absence of any reference
to parliamentary privilege in the Act. The Committee, for the reasons expressed
above, cannot subscribe to the conclusion they draw in this regard.
Committee does, however, agree that at the very least for reasons of
administrative convenience it would be desirable to reflect through legislative
amendments the constitutional obligations imposed on government institutions in
respect of records forming part of the proceedings of the House and its
committees. Such an amendment would facilitate the handling of access to
information requests by government institutions; it would also serve an informative
and instructional purpose by educating and making government institutions aware
of parliamentary privilege.
the constitutional right of the House and its committees over their
parliamentary proceedings is unquestionable, the Committee believes that a more
transparent and functional approach could be taken by parliamentary committees
in their dealings with third party notices under the Access to Information
Act without compromising parliamentary privilege.
Committee therefore recommends a new process for access to information requests
in which the House is a third party. Under this proposed process, documents
that form part of the proceedings of the House would be classified into four distinct
categories. These categories would guide the responses of House officials to
third party notices. In cases of doubt, House officials would ultimately defer
to the House committees themselves the decision as to whether or not a document
should be disclosed. It is important to underline that, in all cases, whether
such records are disclosed or not, the House would make it clear that it
considers that the documents remain subject to parliamentary privilege. By
agreeing to disclose documents, the House in no way would be waiving its privileges
and the usual protections afforded to its Members, its staff or its witnesses
categories proposed by the Committee are as follows:
- Public and accessible records
and accessible records include, for example, proceedings of House of Commons
committees already published, broadcasted or posted on the Parliamentary
website, such as the Evidence and Minutes of Proceedings of
committee meetings. Speaking notes and documents distributed by witnesses to
committees as part of their appearance or any brief submitted to a publicly
accessible proceeding of the committee in relation to a public study are also
included in this category. House officials would always consent to the disclosure
of such documents, as they are already public and accessible, and disclose the
documents in a timely way.
camera records include, for example, transcripts of in camera meetings, draft reports or documents prepared for or distributed at an in
camera meeting, or any document referring to in camera parliamentary
proceedings or documents from which the proceedings at an in camera meeting
may be deduced. Consent to the disclosure of these records should never be
given by House officials. Moreover, the disclosure of in camera materials constitutes a breach of the privilege of the House, and could lead to
a finding of contempt of Parliament. Accordingly, House officials should
indicate, in such cases, that the House objects to the disclosure of such
- Other records that are not publicly accessible and are not part of an in camera proceeding
of records that are not publicly available, but are not part of an in camera proceeding, would be made on a case-by-case basis depending on the content of
the records sought.
recommend that House officials should not consent to the disclosure of records that
they have determined to be of a sensitive nature. These would include, for
example, procedural advice from the committee clerk to the chair, a Member,
staff, or government officials. Another such case would be responses from
potential witnesses that contain personal information (relating to an illness,
for example). In assessing the sensitivity of information, House officials
should be guided by exceptions to disclosure outlined in information and
records that are not determined to be sensitive in nature by House officials,
such as routine correspondence on administrative matters, may be disclosed with
the authorization of the responsible committee when the disclosure would not
cause any prejudice to the House, its committees or anyone who participated in
the parliamentary proceedings. In these cases, the decision as to whether or
not a record should be disclosed or disclosed with redactions should be taken
by the applicable committee, as custodians of the record, and the matter should
be dealt with during an in camera committee proceeding. The decision
should also be taken in a timely fashion so as to respect the time lines under
the Access to Information Act as much as possible. If the committee
which had possession of the record no longer exists, as in the case of a legislative
committee following its report on a bill committed to it, then the matter
should be dealt with by the Standing Committee on Procedure and House Affairs.
Regardless of which committee is responsible, consent to disclosure of such
records shall require unanimous consent from the committee. This requirement
for unanimous consent shall, in no way, limit the ability of the House to deal
with such a matter. If, however, such matters arise during prorogation or
dissolution periods (as opposed to lengthy periods of adjournment such as the
summer recess), then the Speaker of the House of Commons, as the guardian of the
rights and privileges of the House and its Members, will decide whether or not
a record should be disclosed.
- Documents prepared by government institutions for a parliamentary proceeding but never submitted
noted above, materials such as briefing notes, speaking notes, draft statements
that were prepared by government institutions solely for the purpose of witnesses
appearing before a committee or participating in any other parliamentary
proceeding are protected by privilege. While such material may not be formally
presented to the committee, and may only be known to the witness and the government
institution, such preparation for committee appearances is expected and designed
to assist committees in their business. This
material forms part of the parliamentary proceedings and hence is protected by
parliamentary privilege. However, the House does not object to
the disclosure of this material which will therefore be released unless
excepted or exempted under the Act.
all cases, the materials, when released, are made available on the condition,
set out below, that the requestor be advised that the records and their content
remain protected parliamentary privilege.
in the event that any materials in the sole possession of a government
institution were prepared in relation to, or to refer to, in camera proceedings, the committee has a primary interest in the protection of its
privileges and the material cannot be disclosed under any circumstances.
Protecting Privilege over Documents Disclosed
Since the House
or its committees have no means of knowing the reason for any access to
information request, or what use may be made of any document disclosed, the disclosure
of any document must remain subject to the protection afforded by parliamentary
privilege. In the same way that materials published either in print or on the
parliamentary website remain protected through parliamentary privilege,
documents made public through an access to information request also remain
protected by parliamentary privilege. For example, while the parliamentary
debates (Hansard and committee Evidence) are made available
publicly, parliamentary privilege continues to protect Members, as it does any
person participating in the parliamentary proceedings, from any legal action
arising therefrom. As indicated above, the House is the sole judge of its own
proceedings, and any person participating in the proceedings of the House is
answerable only to the House.
the documents, the government institution is encouraged to inform the requestor
that these remain covered by parliamentary privilege.
For all these
reasons, the Committee recommends that the “Process for Access to
Information Request” explained above be adopted by the House and govern the
handling of access to information requests where the information forms part of
a parliamentary proceeding.
recommended by the Committee is aimed at safeguarding the independence and
autonomy of the House in the conduct, and control, of its proceedings, while
addressing current expectations of the public in regard to access to
information. The Committee is conscious of the importance of the values and
rights at stake, and will actively monitor the implementation of the proposed
process to make necessary adjustments to it as the need arises.
Request for Government Response
Standing Order 109, the Committee requests that the government table a
comprehensive response to this Report.
A copy of the
relevant Minutes of Proceedings (Meetings Nos 46,
50, 51, 52, 54, 55, 57, 58, 60, 61 and 62) is tabled.
SUPPLEMENTARY OPINION – NEW DEMOCRATIC PARTY OF CANADA
New Democratic Party members of the Standing Committee on Procedure and House
of Affairs respectfully submit this supplementary opinion:
we recognize that there is a constitutional protection for the privileges of
the House of Commons, we believe that this does not mean that the House or the
Senate should automatically assert itself over another quasi-constitutional
right, namely that of access to information.
September of 2012 the House unanimously agreed that the records related to an
Access to Information Act request filed with the Auditor General should be
released. We think that in the future the House should continue to release
records in similar circumstances.
New Democratic Party members of the Standing Committee on Procedure and House
of Affairs also believe that the House should pursue, as a matter of priority,
amendments to the Access to Information Act to more clearly set out what
documents are encompassed by privilege and what definition of parliamentary
privilege should be added to statute law.
over law vs constitutional norms
New Democratic Party members of the Standing Committee on Procedure and House
of Affairs recognize that there is legitimate debate over how far one may go in
reading into a statute mechanisms or actors that Parliament could easily have
expressly included but failed to do.
example, interpreting a statute in accordance with Charter rights knows certain
limits, and the same in all likelihood is the case for constitutional
privileges. There are well-founded policy reasons, including those grounded in
the rule of law, for limits on the power of courts, statutory officers, and
civil servants to read missing provisions into a statute in the name of the
principle that statutes are presumed to comply with the Constitution.
such reason is that citizens must be able to know, through reasonable effort,
the scope and content of a statute when seeking to make use of this statute;
the Information Commissioner placed some importance on this reason.
reason is that a statute may protect or partly protect other constitutional
norms than those (here, parliamentary privilege) that are being argued to be
implicit in the statute. In such situations, it may be necessary for a conflict
of constitutional norms to be acknowledged – and to require Parliament to be
the one to resolve the conflict through amending legislation rather than have
courts or officials read missing text into the statute.
While freedom of information may not be a free-standing Charter
right, it is closely connected to both the freedom of expression and right to
vote norms, as well as to the broader notion articulated in R. v. Oakes
(Supreme Court of Canada) that the values and principles of a “free and
democratic society” recognized by section 1 of the Charter are the genesis of
the specific Charter protections.
It is no doubt partly because of freedom of information’s
connections to the Charter in the above described ways – and perhaps also the
fact that international human rights law applicable to Canada protects freedom
of expression and freedom of information alongside each other in the same
provisions (e.g. article 19 of the International Covenant on Civil and
Political Rights) – that Parliament ascribed characteristics to the Access to
Information Act that led to the Supreme Court of Canada determining the Act is
a “quasi-constitutional” statute.
While the constitutional right of the House and its committees
over their parliamentary proceedings is unquestionable, NDP members of the
committee believe that a more transparent and functional approach could be
taken by parliamentary committees in their dealings with third party notices
under the Access to Information Act without compromising parliamentary
to the Access to Information Act
believe that due to the differing interpretations of existing law and
constitutional norms presented by witnesses for this study, the House should
consider amending the Access to Information Act to include a new discretionary
exemption for parliamentary privilege.
would be consistent with the recommendations of the 1987 Report of the Standing
Committee on Justice and Solicitor General entitled “Open and Shut: enhancing
the right to know and the right to privacy” as well as the 2002 Task Force
report entitled "Access to Information: Making it Work for
Westminster systems have similar exemptions in place. Such an amendment would
prevent costly legal battles, and would provide statutory basis for the House
of Commons to act.
an exemption would also prevent government institutions from using
parliamentary privilege in a way that would exclude their own documents.
a statutory provision, and with an overly broad interpretation of privilege,
government departments may try to exempt or exclude information that relates to
Parliament. This could include the Question Period cards of Ministers, briefing
notes for officials who have been asked to appear before committees, or even
observations about what has happened in Parliament.
history of the Access to information Act in Canada shows that even minor
exemptions or exclusions will be interpreted in an overly broad way without
clear language in the statute and without political leadership that favours
disclosure over secrecy.
would be important that such an exemption be discretionary (namely that access
could be granted by the House) and also that the exercise of the discretion
would be weighted in favour of disclosure to the public.
of privilege in statute law
the December 6, 2012, meeting Richard Denis, Deputy Law Clerk and Parliamentary
Counsel, proposed “an amendment to the Parliament of Canada Act, which is a
statute, but one that recognizes the privileges of the House, just as the
Constitution does itself. The link to the Constitution and the fact that
privilege has that nature would still be maintained and clearly expressed: that
it must supercede, if you wish, and be recognized by the operation of the
different statutes or in situations when privilege was raised as an issue”.
believe that Parliament should consider defining parliamentary privilege in a
statute, ideally the Parliament of Canada Act, in a way that is consistent with
the Constitution and can clearly be referenced against both existing and future
study was illuminating and educational for the Members of the Standing
Committee on Procedure and House Affairs. As our Chair noted on several
occasions, every point brought up by witnesses raised more questions. We
study should only be the beginning of a discussion on the subject of Access to
Information and the Parliament of Canada. There must be ways for Parliament to
modernize and provide greater transparency to the public.
steps have been taken in terms of the greater release of information on
spending by the House of Commons and also in terms of internet access to
committee proceedings, more must be done. For example, digitization of
government answers to order paper questions has not yet resulted in online
searchability of those answers; this could be a useful next step in
privilege is important in protecting freedom of speech by Members of Parliament
and protecting them from intimidation, but when it is used to hide information
that the public would expect to be available, its invocation becomes a
detriment to the standing of Parliament.